Citation NR: 9733163
Decision Date: 09/29/97 Archive Date: 10/02/97
DOCKET NO. 96-38 410 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
disability pension benefits, in the amount of $1,792.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Laura M. Helinski, Associate Counsel
INTRODUCTION
The veteran had active service from February 1943 to March
1946.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from an August 1995 decision by the
Committee on Waivers and Compromises (Committee) of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, which denied the veteran’s request for
waiver of recovery of an overpayment of disability pension
benefits in the amount of $1,792. The veteran appealed that
determination to the BVA.
REMAND
The facts of this case, in summary, reveal that in February
1978, the veteran was approved for disability pension
benefits. In December 1994, the RO learned that in 1992, the
veteran and his wife had received unearned income which the
veteran did not report to the RO. Consequently, in May 1995,
the RO informed the veteran by letter that his disability
pension benefits were terminated as of January 1993. In a
separate notice dated in May 1995, the veteran was informed
that an overpayment had been created in the amount of $1,792.
In June 1995, the veteran requested a waiver of recovery of
that debt, alleging financial hardship. At that time, he
submitted a Financial Status Report which indicated that his
monthly income exceeded his monthly expenses by approximately
$353 that he had an approximately $700 bank balance after
repayment of bills, and that he had approximately $700 in
other assets (savings bonds). Based on that evidence, in
August 1995, the Committee on Waivers and Compromises denied
waiver of recovery of the debt, finding that it would not be
unreasonable for the veteran to enter a repayment plan.
Subsequently, in October 1995, the veteran requested
reconsideration of waiver of recovery of the debt. At that
time, he submitted a second Financial Status Report in which
he reported that his monthly income exceeded his expenses
(including amounts paid for one-time expenses, such as
eyeglasses, and a car sticker) by approximately $46, that he
had a $400-$500 bank balance, and that he had no other
assets. By letter dated in December 1995, the veteran was
informed that the additional evidence was reviewed by the
Committee, but that the waiver remained denied.
The Board notes that in October 1996, the veteran submitted
another Financial Status Report to the RO, which indicated
that his monthly income exceeded his monthly expenses (again,
including amounts paid for one-time expenses), by
approximately $16.50 that he had approximately $50.00 in the
bank, and that he had approximately $250.00 in other assets.
This report was associated with the veteran’s claims folder,
but does not appear to have been reviewed by the RO in
relation to the claim on appeal. The Board notes that the
veteran has not proffered a waiver of consideration of this
evidence by the RO, even though the evidence clearly was
received subsequent to the issuance of the Statement of the
Case in June 1996, but prior to certification of the case to
the Board in June 1997.. The Board notes that in the absence
of a waiver of RO jurisdiction, the Board is required to
refer the additional evidence back to the RO for review and
disposition, to include issuance of a supplemental statement
of the case to the veteran. See 38 C.F.R. § 20.1304(c).
Accordingly, as the Board finds that additional due process
development is necessary, this case is hereby REMANDED to the
RO for the following action:
1. The RO should review the October
1996 Financial Status Report, in
conjunction with all evidence
previously of record, to determine
whether the benefits sought may now
be granted.
2. If the benefits sought are not
granted, the RO should furnish to the
veteran and his representative a
supplemental statement of the case,
and afford them the applicable
opportunity to respond before the
record is returned to the Board for
further appellate review.
The purpose of this REMAND is to ensure that all due process
requirements are met, and the Board does not intimate any
opinion as to the merits of this case, either favorable or
unfavorable, at this time. No action is required of the
veteran until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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